# EUR-Lex - 52012JC0039 - EN

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# 52012JC0039

**Joint Proposal for a COUNCIL DECISION on the arrangements for the implementation by the Union of the Solidarity clause /* JOIN/2012/039 final - 2012/0370 (NLE) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

Article 222 of the Treaty on the
Functioning of the European Union (TFEU) contains a new provision for a ‘Solidarity
Clause’. Under this provision the Union and its Member States must act jointly
in a spirit of solidarity if a Member State is the object of a terrorist attack
or the victim of a natural or man-made disaster. According to 222(3), first
sentence, the Commission and the High Representative must put forward a joint
proposal upon which basis the Council must decide how the Union is to implement
the Solidarity Clause. The European Parliament must be informed.

Due to the wide scope of the Treaty
article, the arrangements for implementing the Solidarity Clause cover a wide
number of policy areas and instruments. These include the EU Internal Security
Strategy[1],
the Union Civil Protection Mechanism and the Civil Protection Financial Instrument[2], the EU Solidarity Fund[3]; the health security initiative
for serious cross-border threats to health[4],
crisis response and analysis structures in the EEAS; and the Crisis
Coordination Arrangements in the Council. The arrangements are also coherent
with the establishment of a European Area of Justice in the Union.

2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED

Member States have provided valuable written contributions
to the preparation of the proposal on the basis of a list of questions that had
been jointly prepared by the Commission and the EEAS. Member States
representatives have also held discussions in various Council bodies. These
include the Political and Security Committee, the Standing Committee on
Operational Cooperation on Internal Security, the Coordinating Committee in the
area of police and judicial co-operation in criminal matters and the Military Committee.

The European Parliament has also provided a
very useful contribution in the form of its resolution ‘on the EU's mutual defense and solidarity clauses: political and
operational dimensions’[5].

3.           LEGAL ELEMENTS OF THE
PROPOSAL

The
aim of the proposal is to comply with paragraph 3 of Article 222 which requires
that the Commission and the High Representative submit to the Council a
proposal on the Union's arrangements for implementing the Clause. The proposal
defines the geographic scope, the activation mechanism, and the response
arrangements at Union level.

The
proposal takes into consideration and is consistent with the arrangements for
coordination in the Council (on the basis of the Crisis Coordination
Arrangements), in accordance with Article 222.(2).

Having
regard to paragraph 4 of Article 222, the proposal sets out arrangements for:
(i) an integrated threat and risk assessment at Union level to be used as a
basis for a regular assessment by the European Council and (ii) preparedness
measures by the Union and Member States, on the basis of the guidance of the
European Council.

The Clause applies to disasters and
terrorist attacks within the EU territory, whether on land, sea or in the air. It
applies irrespective of whether the crisis originates inside or outside the EU.
The Clause also applies to ships (when in international
waters) and airplanes (when in international airspace) or critical
infrastructure (such as off-shore oil and gas installations) under the
jurisdiction of a Member State.

The Clause relates to all crisis response structures at EU level. Given the EU internal
dimension of the Clause, most of the relevant structures are in the Commission
(DG ECHO, HOME, SANCO, TAXUD etc.), or in EU decentralised agencies
(FRONTEX, ECDC, EUROPOL, EMSA, EFSA, EMA etc.). The European External Action
Service has at its disposal structures with situation awareness, intelligence
or military expertise[6]
as well as the network of Delegations that may contribute to the response to
threats or disasters in the territory of Member States or to crises with an
external dimension. Coordination and information exchange between the
Commission and EEAS and relevant agencies will take place in the framework of
meetings convened by the Commission to prepare the proposed crisis response
measures.

Implementation arrangements for the
Solidarity Clause do not replace any existing instruments or policies and the
specific procedures for their activation. They provide an umbrella framework for
situations of extraordinary threat or damage that overwhelm the response
capacities of the affected Member State(s). To improve efficiency and avoid
duplication of structures and functions, a network approach will be used. The
most relevant EU response centre for each crisis will constitute the hub and the
interface with Member States (the ‘centre of gravity’),
supported by the full spectrum of specialised services.

The proposal foresees that the EU should
act only in exceptional circumstances and at the request of the political
authorities of a Member State which sees its own capacities overwhelmed as the
result of an actual or imminent terrorist attack or of a
natural or man-made disaster.

The Member State affected may invoke the
Solidarity Clause and must address its request to the Commission and notify
simultaneously the Presidency of the Council.

The competent authorities of the Member State affected must immediately take contact with the Commission's Emergency Response
Centre (ERC) which will act as the initial single 24/7 point of contact at
service level for the Union.

Once the Solidarity Clause has been
invoked, the Commission and the High Representative acting in accordance with
the arrangements set out in this Decision, must:

·
First, identify and mobilise all Union
instruments that can help respond to the given crisis. These include all
sector-specific, operational or policy instruments that fall within their own
remit In addition, the Commission and the High Representative must identify and
propose the use of instruments and resources falling within the remit of Union
Agencies.

·
Then, working in close contact with the affected
  Member State, assess whether existing instruments are sufficient or whether
additional support is required, complemented, where appropriate, with financial
assistance from the EU Solidarity Fund.

·
Where appropriate, submit proposals to the
Council as concerns operational decisions to reinforce existing mechanisms,
decisions on exceptional measures by Member States not foreseen by existing
instruments; policy coordination and information exchange; operational or support
measures for fast reaction of Member States.

If military support is needed, other than
what is already foreseen by the Civil Protection Mechanism, a separate proposal
will be submitted by the High Representative in accordance with the relevant
Treaty provisions.

The Commission and the European External
Action Service will produce joint integrated situation assessment reports.
These reports will be compiled by the ERC or the designated operational centre,
in cooperation with the EU Situation Room, drawing on contributions from the
different situation awareness and crisis management centres in Member States,
the Commission, the EEAS, the EU Agencies and relevant international
organisations. These reports will be shared with Member States to inform and
support the coordination and decision-making at political level in the Council.

The ERC will initially act as the single
operational hub at Union level. The Commission, in consultation with the High
Representative, may subsequently designate another centre better placed to
assume that function taking into account the nature of the crisis. The
designated operational hub will act as the primary point of contact for Member
States. It will take the lead in coordinating the operational response and in producing
joint situation assessment reports.

Once the Clause has been invoked, the
Presidency may decide to activate the Crisis Coordination Arrangements and
identify the most appropriate way for rapid consultation and decision-making in
the Council, in compliance with the obligation of Member States to assist, in
accordance with Article 222(2). Support to the operation of the Crisis
Coordination Arrangements shall be provided by the General Secretariat of the Council,
the Commission and EEAS.

Starting in 2015, the Commission and the
High Representative will regularly produce a joint integrated threat and risk
assessment report at Union level. This report will build on assessments of
threats, hazards and risks currently compiled in various sectors (such as
terrorism, organised crime, civil protection, health, climate change and
environment). It will be based in particular on monitoring, interpretation and
sharing of information provided by the Member States (through existing sectoral
networks or from crisis centres), EU Agencies and relevant international
organisations. The integrated threat and risk assessment reports will be the
basis for a regular assessment by the European Council.

Legal basis

The legal basis of this proposal is Article
222 of the Treaty on the Functioning of the European Union.

Subsidiarity principle

The proposal provides that the EU should
act only in exceptional circumstances and at the request of the political
authorities of a Member State which sees its own capacities overwhelmed.

Proportionality principle

The proposal does not go beyond what is
necessary to achieve the objectives of the Clause. To this end, it foresees due
use of all ordinary existing EU assistance instruments.

2012/0370 (NLE)

Joint Proposal for a

COUNCIL DECISION

on the arrangements for the implementation
by the Union of the Solidarity clause

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 222(3), first
sentence, thereof,

Having regard to the joint proposal from
the European Commission and the High Representative of the Union for Foreign
Affairs and Security Policy,

Whereas:

(1)       This
Decision concerns the implementation by the Union of the Solidarity Clause.
However, coherence and complementarity of Union action should be sought with
other assistance to be provided by Member States pursuant to Article 222(2) of
the Treaty and Declaration 37 annexed to the Treaty, which lays down that a Member State can choose the most appropriate means
to comply with its own solidarity obligation towards another Member State.

(2)       Implementation
of the Solidarity Clause by the Union shall: rely on existing instruments to
the extent possible; increase effectiveness by enhancing coordination and
avoiding duplication; function on the basis of no additional resources; provide
a simple and clear interface at Union level to Member States; and respect
institutional competences of each institution and service.

(3)       This
Decision relates to a number of policy instruments and in particular: the European
Union Internal Security Strategy; the European Union Civil Protection
Mechanism; the European Union Solidarity Fund, the Decision on serious cross
border threats to health and the structures developed in the framework of the
Common Security and Defence Policy.

(4)       Arrangements for
coordination of Member States in the Council should rely on the EU Crisis
Coordination Arrangements (hereinafter referred to as "CCA"), as revised
following a Council mandate and its subsequent conclusions[7] that: "coherence should be
ensured with the implementation of the Solidarity Clause";
"arrangements will draw on the well-known regular Council procedures
instead of having recourse to pre-defined ad-hoc groups";
"recognise the importance of an integrated EU
situational awareness capability".

(5)       The geographic scope of
the implementing arrangements needs to be clearly defined.

(6)       As regards the fight
against terrorism[8], various instruments are in place strengthening the protection of
critical infrastructures in energy and transport[9];
enhancing the cooperation between law enforcement authorities, reinforcing the prevention
of radicalisation and limiting the access of terrorists to funds as well as to
explosives and chemical, biological, radiological and nuclear materials[10].

(7)       An activation mechanism
for the implementing arrangements needs to be defined at Union level, based on
a high-level political request from concerned Member State(s) and supported by
a single entry point at Union level.

(8)       Response Arrangements at
the Union level should improve effectiveness through strengthened coordination
building on existing instruments.

(9)       The
Civil Protection Mechanism[11]
facilitates reinforced cooperation between the Member States and the Union in the field of civil protection. The Commission's proposal for a Union Civil Protection Mechanism[12] foresees the establishment of the Emergency Response Centre
(hereinafter called "ERC") that will ensure 24/7 operational capacity
and serve Member States and the Commission.

(10)     The
European External Action Service has at its disposal structures with
intelligence or military expertise (such as the the EU Intelligence Analysis Centre, the EU Military Staff and the
EU Situation Room), as well as the network of Delegations that may also
contribute in the response to threats or disasters in the territory of Member
States or to crises having an external dimension.

(11)     The
Strategic Analysis and Response Centre established in 2011 in the Directorate
General for Home Affairs of the Commission provides for assessment and
management of risks and crises affecting the Union's internal security,
including those related to terrorism.

(12)     Where necessary and
practicable in view of the urgency, the response arrangements at Union level
should be complemented by the adoption of legal acts or the amendment of
existing acts in accordance with the relevant provisions of the Treaty.

(13)     This
decision has no defence implications. In case a crisis requires Common Foreign
and Security Policy (CFSP) action, beyond the use of military resources covered
by existing arrangements on civil protection, a decision should be taken by the
Council in accordance with relevant Treaty provisions.

(14)     The
Commission's communication on the EU Internal Security Strategy in Action: Five steps towards a more secure Europe[13] set
the objective to increase Europe's resilience to crises and disasters through a
number of actions including making full use of the Solidarity Clause and
developing an an all-hazard approach to threat and risk assessment. In line
with it, a cross-sectoral overview of natural and man made disaster risks should
also be prepared and regularly updated.

(15)     An integrated threat and
risk assessment process should be set up at the Union level which should allow
the European Council to assess the threats facing the Union in order to enable
the Union and its Member States to take effective action.

(16)     On 22 November 2012, the
European Parliament has adopted a resolution 2012/2223, entitled "EU's
mutual defence and solidarity clauses: political and operational dimensions’.

(17)     The arrangements provided
herein are without prejudice to further development of dedicated arrangements
for handling of crisis situations occuring outside the territory of Member States.

(18)                 This Decision
respects the fundamental rights and observes the principles recognised by the
Charter of Fundamental Rights of the European Union and has to be applied in
accordance with these rights and principles.

(19)     Since the objectives of this Decision, namely implementation
by the Union of the Solidarity Clause, cannot be
sufficiently achieved by the Member States and can therefore be better achieved
at Union level, the Union may adopt measures, in accordance with the principle
of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of
proportionality, as set out in that Article, this Decision does not go beyond what is necessary in order to achieve those
objectives.

HAS ADOPTED THIS DECISION:

Article 1

General
objective and subject matter

1.           This Decision lays down
rules and procedures for implementing the provisions of Article 222(3), first
sentence of the Treaty on the Functioning of the European Union (hereinafter
"the Solidarity Clause").

2.           Arrangements at Union
level shall build upon and complement mechanisms in the Commission and Union
Agencies to provide information and support. For crises that have an external
dimension or that require intelligence, military resources or CFSP action, the
High Representative and the EEAS shall contribute by taking adequate
initiatives and providing relevant information and support within the High
Representative's area of competence.

3.           These arrangements shall
improve efficiency through enhanced coordination between Union and Member
States response.

4.           Coordination at political
level in the Council shall be based on the Crisis Coordination Arrangements and
shall also ensure coherence and complementarity with Union action.

Article 2

Scope

This Decision shall apply in case of terrorist
attacks or natural or man-made disasters, irrespective of whether they
originate inside or outside the territory of the Member States:

(a)
Within the territory of Member States to which
the Treaty applies, including land area, territorial sea and airspace.

(b)
When affecting ships (when in international
waters) or airplanes (when in international airspace) or critical
infrastructure (such as off-shore oil and gas installations) when under the
jurisdiction of a Member State.

Article 3

Definitions

For the purposes of this Decision, the
following definitions will apply:

(a)
Crisis: a serious, unexpected and often
dangerous situation, requiring timely action; a situation that may affect or
threaten lives, environment, critical infrastructure or core societal
functions, may be caused by a natural or man-made disaster or terrorist attacks;

(b)
Disaster: any situation, which has or may have
an adverse impact on people, the environment or property;

(c)
Terrorist attack: a terrorist offence as defined
in the Council Framework Decision of 13 June 2002 on Combating Terrorism,
2002/475/JHA, as amended by Council framework decision of 28 November 2008,
2008/919/JHA.

(d)
Preparedness: a state of readiness and
capability of human and material means enabling them to ensure an effective
rapid response to an emergency, obtained as a result of action taken in
advance;

(e)
Response: any action taken during or after a
disaster or an actual or imminent terrorist attack to address its immediate
adverse consequences.

Article 4

Activation

1.           A Member State being the
object of an actual or imminent terrorist attack or the victim of a natural or
man-made disaster may invoke the Solidarity Clause if, after having exploited
the possibilities offered by existing means and tools, at national or Union
level, it considers that the situation overwhelms its response capacity.

2.           The Member State affected shall address its request to the President of the European Commission, through
the Emergency Response Centre, and notify simultaneously the Presidency of the
Council.

3.           The Emergency Response
Centre shall act as the initial single 24/7 point of contact for the competent
authorities of the Member State affected.

Article 5

Response arrangements at Union
level

1.           Once the Solidarity Clause
has been invoked, the Commission, and the High Representative in accordance
with article 1.2, shall:

(a)
identify and use all relevant Union instruments
that can best contribute to a response to the crisis, including
sector-specific, operational, policy or financial decisions (e.g. the Civil
Protection Mechanism, the Strategic Analysis and Response Centre, the Health
Emergencies Operations Facility, the intelligence resources of INTCEN) that
fall in the remit of the Commission and of the High Representative, as well as
military resources mobilised through EUMS; in addition, identify and propose
the use of instruments and resources falling within the remit of Union
Agencies;

(b)
 assess whether existing instruments are
sufficient;

(c)
 produce regular integrated situation assessment
and analysis reports to inform and support the coordination and decision-making
at political level in the Council;

(d)
 where appropriate, submit proposals to Council,
in particular as concerns: operational decisions on reinforcement of existing
mechanisms, decisions on exceptional measures from Member States not foreseen
by existing instruments; policy coordination and information exchange with the
aim to create necessary regulatory conditions; operational or support measures
for fast reaction of Member States.

The Commission shall convene meetings to
prepare the proposed crisis response measures. The Commission shall invite the
EEAS and the relevant EU Agencies.

2.           The Emergency Response
Centre (ERC) shall initially act as the single operational hub with Member
States at Union level. The Commission, in consultation with the High
Representative, may subsequently designate another centre better placed to
assume that function taking into account the nature of the crisis. The
designated operational hub shall act as the primary entry point for Member
States. It shall lead operational response coordination and produce situation assessment
reports.

Article 6

Arrangements for coordination in the Council

Upon activation of the Clause, the
Presidency of the Council may take the decision to activate the Crisis
Coordination Arrangements and identify the most appropriate way to prepare
rapid consultations and decisions in the Council, in respect of the obligation
to assist. Support to the operation of the Crisis Coordination Arrangements
shall be provided by the General Secretariat of the Council, the Commission and
EEAS.

Article 7

Situation assessment reports

Situation assessment reports will be compiled
by the ERC or the designated operational centre, in collaboration with the EU
Situation Room. The preparation of such reports will draw on contributions from
the different situation awareness and crisis management centres, in Member
States, in the Commission, the EEAS and the relevant EU agencies, as well as in
relevant International Organisations.

Article 8

Integrated threat and risk assessment at Union level

1.           The Commission and the
High Representative will regularly produce, starting in 2015, a joint
integrated threat and risk assessment report at Union level.

2.           This report shall build on
assessments of threats, hazards and risks currently compiled in various sectors
(e.g. terrorism, organised crime, civil protection, health, environment,
climate change, etc.) based notably on monitoring, interpretation and sharing
of information provided by the Member States (through existing sectorial
networks or from crisis centres) and Union Agencies as well as relevant
international organisations.

3.           The integrated threat and
risk assessment reports will be the basis for a regular assessment by the
European Council.

Article 9

Preparedness

The Member States, the Commission and the
High Representative may assess the means available throughout the Union and the
  Member States to meet the major threats, identifying possible gaps and the
most efficient and cost effective ways to address those gaps and build the
means of effective solidarity.

Article 10

Entry into force

This Decision shall enter into force on the
twentieth day following that of its publication in the Official Journal of
the European Union.

Done at Brussels,

For
the Council

The
President

[1]               Communication from the Commission to the European
Parliament and the Council of 22 November 2010 – The EU Internal Security
Strategy in Action: Five steps towards a more secure Europe (COM(2010) 673
final)

[2]               Council Decision establishing
a Community Civil Protection Mechanism (recast), 2007/779/EC, Euratom; Council
Decision establishing a Civil Protection Financial Instrument, 2007/162/EC,
Euratom

[3]               COUNCIL REGULATION (EC) No 2012/2002 of 11 November
2002 establishing the European Union Solidarity Fund

[4]               Proposal for a decision of the European Parliament
and of the Council on serious cross-border threats to health, COM(2011) 866
final

[5]               2012/2223 of 22.11.2012

[6]               Such as the EU Intelligence Analysis Centre, the EU
Military Staff and the Situation Room

[7]               JHA Council conclusions of 01.06.2006, doc. 9409/06,
COREPER conclusions of 10.12.2010; COREPER conclusions of 23.11.2011 and of
30.05.2012

[8]               Terrorism as defined in the Council Framework
Decisions on Combating Terrorism of 2002 and 2008 (OJ L 164 of 22.6.2002, p 3; OJ L 330 of 9.12.2008, p. 21).

[9]               As identified in Council Directive 2008/114/EC of
8.12.2008 on European Critical Infrastructures (OJ L 345, 23.12.2008).

[10]             Commission Communication "The
EU Counter-Terrorism Policy: main achievements and future challenges" (COM(2010)386
final of 20.7.2010). Subsequently further actions have been taken such as
proposing a Regulation on the use and marketing of explosives precursors (COM(2010)
473 final), setting up the Radicalisation Awareness Network (RAN) and enhancing
efforts in the field of CBRN, explosives security and detection.

[11]             Council Decision 2007/779/EC, Euratom establishing a
Community Civil Protection Mechanism (recast) and Council Decision establishing
a Civil Protection Financial Instrument (2007/162/EC, Euratom).

[12]             COM(2011)934 final

[13]             COM(2010)673 final.